Courtney v. Foster

• Citation: 235 Ariz. 613,334 P.3d 1272
• Decision Date: 18 September 2014
• Docket Number: No. 1 CA–SA 14–0132.,1 CA–SA 14–0132.
• Parties: Josephina COURTNEY, Petitioner, v. The Honorable George H. FOSTER, Jr., Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF MARICOPA, Respondent Judge, Clint Courtney, Real Party in Interest.
• Court: Court of Appeals of Arizona

235 Ariz. 613
334 P.3d 1272

Josephina COURTNEY, Petitioner
v.
The Honorable George H. FOSTER, Jr., Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF MARICOPA, Respondent Judge
Clint Courtney, Real Party in Interest.

No. 1 CA–SA 14–0132.

Court of Appeals of Arizona, Division 1.

Sept. 18, 2014.

334 P.3d 1273

Cantor Law Group, PLLC, Phoenix By Felicia Schumacher, Nicole Stearns, Counsel for Petitioner.

Smith Law Office, Litchfield Park By Terry Bays Smith, Counsel for Real Party in Interest.

Judge MAURICE PORTLEY delivered the Opinion of the Court, in which Presiding Judge SAMUEL A. THUMMA and Judge MARGARET H. DOWNIE joined.

OPINION

PORTLEY, Judge.

235 Ariz. 614

¶ 1 After filing her petition for dissolution, Petitioner Josephina Courtney (“Mother”) sought temporary parenting time with her daughter. Clint Courtney (“Father”) challenged her request because he had previously secured an order of protection against Mother from the Tolleson Municipal Court, and their daughter was listed as a protected person. The superior court conducted an evidentiary hearing, found it did not have the authority to modify the order of protection, and, as a result, denied Mother any temporary parenting time. Mother seeks special action review of the court's decision.

PROCEDURAL BACKGROUND

¶ 2 Mother and Father married in April 1998 and have one minor child. Father obtained an ex parte order of protection in January 2014 against Mother that included their minor daughter as a protected person.¹ After a hearing, the municipal court amended the order of protection to allow Mother to have e-mail or regular mail contact with her daughter.

¶ 3 Mother filed a dissolution petition the following month and sought temporary parenting time.² The order of protection was subsequently transferred to the superior court pursuant to Arizona Revised Statutes (“A.R.S.”) section 13–3602(P).³ Although the superior court questioned whether it could modify the order of protection, the court held an evidentiary hearing and took the issues

235 Ariz. 615

334 P.3d 1274

under advisement. In a detailed minute entry, the court determined that it did not have authority to modify the order of protection and denied Mother's request for temporary parenting time.

JURISDICTION

¶ 4 Special action jurisdiction is discretionary, but appropriate, when there is no equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). We have exercised special action jurisdiction over a ruling on temporary orders because a party does not have the ability to appeal the ruling. Villares v. Pineda, 217 Ariz. 623, 624–25, ¶ ¶ 10–11, 177 P.3d 1195, 1196–97 (App.2008). Moreover, when an issue is one of first impression, is a purely legal question, is of statewide importance and may arise again, special action is appropriate. Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8, 212 P.3d 919, 924 (App.2009) (citing Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992) ). Accordingly, we exercise our discretion and accept special action jurisdiction over the temporary orders ruling.

DISCUSSION

¶ 5 Mother challenges the superior court's conclusion that “the statute and the rule do not allow [her] under an order of protection to use a subsequent family court legal decision-making request to circumvent an order of protection.” She contends that the superior court has the authority to determine whether and under what conditions she should have temporary parenting time notwithstanding the order of protection. We agree.

¶ 6 We review the interpretation of statutes and rules de novo. Devenir Assocs. v. City of Phx., 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991) ; Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 (App.2005). We interpret statutes and rules with the intent of the drafter and look to the plain language of the statute or rule as the best indicator of that intent. Id. If the language is clear and unambiguous, it is the best and most reliable index of the meaning of the rule or statute. In re Estate of Winn, 225 Ariz. 275, 277, ¶ 9, 237 P.3d 628, 630 (App.2010). If, however, the language is ambiguous and the intent is unclear, we will consider the context of the rule and statute, “its language, subject matter, and historical background; its effects and consequences; and its spirit and purpose.” Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

¶ 7 We start our analysis by examining the superior court's authority to resolve the request for temporary...